Other matters relating to grants of legal assistance
Allocation of solicitor
There is no choice of solicitor in legally assisted matters. The allocation of solicitor for a particular matter will be determined by Legal Aid Queensland.
Grants of legal assistance may be allocated to an in-house practitioner or a private solicitor.
Allocation of solicitor for criminal law co-accused
Legal Aid Queensland adopts a one client per law practice principle whereby a law practice is able to act for only one of two or more co-accused except as follows:
- An External Review Officer appointed by Legal Aid Queensland approves the representation of multiple co-accused by a law practice; or
- Legal Aid Queensland determines that, in all the circumstances, it is appropriate for multiple co-accused to be represented by a law practice.
Transfer of solicitor
Unless exceptional circumstances exist a legally assisted person is not permitted to change solicitors from:
- one private solicitor to another private solicitor or
- from an in-house solicitor to a private solicitor.
Legal Aid Queensland will be satisfied that there are exceptional circumstances, only if:
- there is a conflict of interest, or
- there is an irretrievable breakdown in the relationship between the client and the legal practitioner, but does not include cases where the client has withdrawn instructions or otherwise makes it impossible for the legal practitioner to continue with representation, or
- where Legal Aid Queensland determines the reason for changing legal practitioner is in all the circumstances an appropriate expenditure of limited legal aid resources.
- for family law matters only, the legally assisted person has changed their address and it is unreasonable to expect them to travel to attend on the assigned practitioner.
If a private legal practitioner has represented an applicant for legal assistance in any other proceedings, a request by that practitioner for assignment of the matter does not ordinarily constitute exceptional circumstances. However, exceptional circumstances may exist if there would be an unreasonable delay in Court proceedings if the matter was not assigned to the legal practitioner.
The timeliness of an application for legal assistance will be assessed when determining whether there would be an unreasonable delay in Court proceedings.
There is no right of appeal to the External Review Officer (ERO) against a decision to provide legal assistance on the condition that a matter will be conducted by an in-house legal practitioner or by a specified legal practitioner nominated by Legal Aid Queensland.
Acceptance of legal advice under a grant of legal assistance
A person in receipt of a grant of legal assistance must accept the advice of the legal representative appointed to act for them. Failure to do so may result in a termination of the grant of legal assistance. This condition does not apply to specified criminal law proceedings.
Provision of instructions
A person in receipt of a grant of legal assistance must provide their legal representatives with proper instructions upon which the representatives are able to act in accordance with their ethical and professional obligations. Failure to do so may result in a termination of the grant of legal assistance.
Urgent grants of legal assistance
Telephone requests for urgent grants of legal assistance are considered only when no facilities exist to e-mail, fax or to hand-deliver application forms and supporting material to Legal Aid Queensland.
If an urgent grant of legal assistance is required,
- the private practitioner must telephone the nearest Legal Aid Queensland office.
- Legal Aid Queensland must be satisfied of the merits of the case and of the urgency of the matter.
If an urgent grant of legal assistance is approved,
- An interim approval is issued.
- The interim approval lapses within 14 days unless a formal application for legal assistance and verification of means are received in Legal Aid Queensland.
- The interim grant of legal assistance is conditional upon receiving the appropriate application form and such application confirming financial eligibility.
Retrospective grants of legal assistance
Grants of legal assistance are not provided retrospectively unless there are exceptional circumstances which led to the failure to apply for legal assistance and it will cause an applicant substantial financial hardship if retrospective assistance is not granted.
An application for retrospective grant of legal assistance must set out the exceptional circumstances and must provide:
- the date the applicant first consulted the solicitor about the case;
- details of the applicant's financial circumstances at that date, and throughout the conduct of the matter;
- details of the applican's current financial circumstances;
- a copy of the private practitioner's account, or an estimate of fees; and
- written confirmation that, should retrospective aid be granted, the private solicitor, counsel if any, and any other service provider, are prepared to accept payment of fees at the Legal Aid Queensland rate.
- If retrospective assistance is refused, an applicant may request a review of that decision.
Interstate application for grants of legal assistance (Forum Test)
When a person who applies for a grants of legal assistance is resident in one State and the grant relates to an action to be taken outside that State, the "forum test" is to be applied and the question of aid is the sole responsibility of legal aid in the State in which the action is to be taken.
When a grant of legal assistance has been made to a resident in one State and the proceedings are transferred to a Court or Tribunal outside that State, the grant of assistance will continue to be the responsibility of that legal aid body which will manage the file and will be responsible for any interstate agent's fees incurred, provided the relevant means and merit tests continue to be satisfied.
When a person to whom legal assistance has been granted ceases to reside in a State but the proceedings have not been transferred, the grant of assistance continues to be the responsibility of legal aid in the State in which the action is being taken. However, the grant is subject to review, particularly in regard to possible changes in the financial position of the legally aided person.
When a person to whom legal assistance has been granted ceases to reside in a State or never resided in the State, and the proceedings are also transferred to a court outside that State, grants of legal assistance by the granting State ceases and a fresh application for a grants of legal assistance made to the Legal Aid body in the new forum State.
When proceedings have been funded by one Legal Aid body and the grant of legal assistance is transferred in accordance with the previous paragraph, the new Legal Aid body will, on the satisfactory conclusion of the matter, collect from the legally aided person on behalf of the initial Legal Aid body that proportion of costs and outlays to which it would have been entitled.
Community Legal Centres
Applications for grants of legal assistance which are received from community legal centres are processed in the same way as all other applications
If a grant of legal assistance is approved, the grant of legal assistance may be referred back to the community legal centre provided there is at least a part-time solicitor employed at the centre who holds an unconditional practising certificate but the grant of legal assistance is on a disbursement-only basis.
Legal aid in these matters is limited to counsel's fees and disbursements and does not include payment of solicitor's professional fees.
Disbursements are payable only in matters where a grant of aid for counsel has been made. The disbursements payable to CLC's include travel, accommodation and expert reports. Conduct money and nominal outlays such as the cost of phone calls, facsimiles and photocopying are not payable.
Criminal law
- Legal Aid can be granted through CLC's in criminal proceedings where counsel is approved.
- Disbursements in these matters are limited to those associated with the relevant part of the proceedings for which counsel has been approved.
Family Law
- A grant of legal assistance for CLC's to represent clients at legal aid family dispute resolution conferences provides access to the dispute resolution service. This is not a grant for which counsel is available or provided and no fees are payable.
- CLC applications may be for
- Applicants to initiate the conference process; or
- Respondents where the other party already has a grant of aid for the conferencing process.
- If the issues are not resolved at the conference and the CLC continues to act for the client any further grants are limited to stages where a grant of aid for counsel is available.
- If the issues are not resolved at the conference and the CLC is no longer acting, the client may apply for a grant of aid and if approved be referred to an in-house solicitor or preferred supplier.
Civil Law
- Legal Aid can be granted through CLC's in civil law proceedings where counsel is approved.
- Disbursements in these matters are limited to those associated with the relevant part of the proceedings for which counsel has been approved.
Aboriginal and Torres Strait Islander Legal Service (ATSILS)
Legal Aid Queensland partners with the Aboriginal and Torres Strait Islander Legal Service in the delivery of legal assistance to eligible Indigenous people.
Applications for grants of legal assistance which are received from ATSILS are processed in the same way as all other applications and the applicant must meet Legal Aid Queensland's guidelines, means and merits tests (where applicable).
If an application for legal assistance received from ATSILS is approved, it will be referred back to ATSILS unless a conflict of interest exists.
Legal aid in these matters is limited to counsel's fees and disbursements and does not include payment of solicitor's professional fees.
Disbursements are payable only in matters where a grant of aid for counsel has been made. The disbursements payable to ATSILS include travel, accommodation and expert reports. Conduct money and nominal outlays such as the cost of phone calls, facsimiles and photocopying are not payable.
Criminal Law
- Legal Aid can be granted through ATSILS in criminal proceedings in the District or Supreme Courts and in committals which will proceed to the Supreme Court.
- Legal Aid is not generally approved to ATSILS for committals which will proceed to the District Court, however, if an application be received, it will be considered by Legal Aid Queensland.
Family Law
- ATSILS can represent either the applicant or the respondent at a Legal Aid Queensland family dispute resolution conference.
- A grant of legal assistance for ATSILS to represent clients at legal aid family dispute resolution conferences provides access to the dispute resolution service. This is not a grant for which counsel is available or provided and no fees are payable.
- Legal Aid can be granted through ATSILS in family law proceedings covered by the guidelines where counsel is approved.
- Disbursements in these matters are limited to those associated with the relevant part of the proceedings for which counsel has been approved.
Civil Law
- Legal Aid can be granted through ATSILS in child protection proceedings where counsel is approved.
- Disbursements in these matters are limited to those associated with the relevant part of the proceedings for which counsel has been approved.
Refusals of grants of legal assistance
Refusals of grants of legal assistance including refusals of requests for an extension of the grant of legal assistance and extension of the estimate of costs for the grant of legal assistance, will be notified to the applicant's solicitor and/or applicant together with the reasons for refusal.
Termination of a grant of legal assistance
A grant of legal assistance may only be terminated by Legal Aid Queensland.
A grant of legal assistance cannot be terminated by the legally assisted person or by his or her legal representative, although either can request termination.
Change of circumstances
Every legally assisted person and that person's solicitor has a responsibility to notify Legal Aid Queensland of any changes in the legally assisted person's circumstances which are likely to affect that person's continued eligibility for legal assistance. Legal Aid Queensland may ask a legally assisted person to complete an update of current financial circumstances at any time.
Legal aid conferences
It is Legal Aid Queensland's policy to consider calling conferences in any civil or family law dispute when it considers the matter is capable of being resolved by negotiation. A conference may be held as the initial grant of legal assistance or after proceedings have commenced. A conference is usually held before a grant of legal assistance to proceed to trial is issued.
A Legal Aid Conference has two objectives.
- The first is to provide the parties with a forum in which to try to resolve the issues in dispute.
- The second is to give Legal Aid Queensland the opportunity to be fully appraised of all the issues before deciding whether to continue to grant legal assistance to an applicant.
Usually, a conference is called when both parties are legally assisted, even if Legal Aid Queensland is acting for one of the parties. In the latter situation, arrangements will be made for the conference to be chaired by a private practitioner.
A conference may also be called when only one party is legally assisted and the other party has applied for a grant of legal assistance. In these circumstances, the other party's solicitor is paid at the conference fee rate for attending the conference provided that the client is financially eligible for legal assistance.
On some occasions, when one party is legally assisted and the other party is privately funding their action, the other party and his or her solicitor may be invited to attend a conference at the other party's expense, provided that the other party agrees to share the conference chairperson's costs where applicable.
Briefing of counsel in legally assisted matters
Counsel may be briefed where prior written approval has been obtained from Legal Aid Queensland. In some cases, Legal Aid Queensland may direct the briefing of particular counsel(including an in-house counsel).
Only barristers who are members of the Bar Association of Queensland may be briefed unless the prior approval of Legal Aid Queensland is obtained before the delivery of the brief.
For circuit court sittings, Legal Aid Queensland briefs counsel for all legally assisted matters to be dealt with in the sittings. In all other matters, solicitors may elect to brief counsel from the local bar or out of town counsel provided that this does not involve additional cost to Legal Aid Queensland.
In cases where counsel of suitable experience in a particular jurisdiction is not available, or there is a conflict of interest, out of town counsel may be briefed provided that there has been prior agreement from Legal Aid Queensland.
Payment of agents
Payment is not approved for an agent unless Legal Aid Queensland is satisfied that it was necessary to engage an agent and it was a more economical use of legal aid funds to engage the agent than to have the assigned solicitor perform the task.
Contribution by the legally assisted person
Legal Aid Queensland may impose an initial financial contribution towards the costs of providing legal services sought by the applicant.
The initial contribution is determined by the Means Test.
Legal Aid Queensland may also require a legally assisted person to pay a retrospective contribution towards the costs of providing legal services. The amount of retrospective contribution to be paid is determined at the conclusion of the proceedings or when the person ceases to be legally assisted.
Initial contributions
No grant of legal assistance is made when the initial contribution to be paid by the applicant for legal aid would be greater than the commitment (likely cost) on the particular grant of legal assistance.
When a legally assisted person is required to make an initial contribution on account of income and assets, the contribution to be imposed is the sum of both contributions.
Where an applicant applies for assistance for two or more matters at the same time only one initial contribution is imposed.
Where financially associated persons apply for aid in a matter where they are co-accused only one initial contribution is payable.
Split contributions
Where the total contribution payable by a legally assisted person exceeds the likely cost of the first stage grant, consideration may be given to splitting the contribution payable over the first and subsequent stages of the case.
Prior payment of legal fees
The fact that the applicant has already paid fees to a private practitioner in relation to a matter is not taken into account when assessing the level of the initial contribution to be paid. The initial contribution is assessed on the income and assets declared on the application form and no credit is given for payment of legal fees, whether in relation to the same matter or not.
Solicitor's responsibility for initial contributions
It is the responsibility of the private solicitor to collect the initial contribution imposed. Legal Aid Queensland will deduct any assessed initial contribution from the first payment of professional fees, or the first payment of disbursements to be made to the private solicitor.
In some circumstances, an initial contribution may be required to be sent to Legal Aid Queensland.
Other conditions on grants of legal assistance
In addition to imposing an initial financial contribution as a condition of a grant of legal assistance, other conditions may be imposed. These conditions will be notified to the legally assisted person and the solicitor when the grant of legal assistance is made or extended.
Retrospective contributions
In matters where a grant of legal assistance results in the legally assisted person's ownership or entitlement to property being preserved, or to that person being entitled to recover property or money, Legal Aid Queensland may require payment of a contribution to Legal Aid Queensland. This contribution will not exceed the ordinary professional costs, including the solicitor and own client costs, less any initial contribution already paid.
Security
Legal Aid Queensland may take a mortgage or other security over any land or other property owned by the legally assisted person, to secure the contribution owing. The contribution must be repaid within a time to be specified by the Chief Executive Officer or the Chief Executive Officer's nominee.
Security over property may also be required as a condition of a grant of legal assistance where the grant of legal assistance is made under the Means Test Special Circumstances Guidelines.
Interest charges
Interest is charged in relation to the retrospective contribution imposed in matters where the grant of legal assistance was made on or after 1 September 1990 and is payable while it or part of it remains unpaid, at the rate prescribed in s.48 Supreme Court Act 1995, in respect of a judgment of a court of record.
Legal Aid Queensland requires interest to be paid on a contribution while it or part of it remains unpaid one month after the date of imposition or, when there is a request for review, within fourteen days after the final determination of the External Review Officer, whichever occurs first.
When a contribution is levied, Legal Aid Queensland must notify the legally assisted person of the amount to be paid and the rate of interest which will accrue.
The contribution that the legally assisted person is liable to pay shall, until payment, be a first charge in favour of Legal Aid Queensland on the money and property actually recovered by or on behalf of the legally assisted person in respect of the matter in which legal assistance was given. All conveyances or acts done to defeat that charge will be void as against Legal Aid Queensland except for a bona fide purchaser for value without notice.
Statutory charge
When money, property, or both is recovered or recoverable from or preserved as a result of a legally assisted action, the Act gives Legal Aid Queensland a first charge on such money or property for its costs and outlays. All conveyances or acts done to defeat the charge will be void as against Legal Aid Queensland except for a bona fide purchaser for value without notice.
Solicitor's responsibility - refund to Legal Aid Queensland
When such money or property comes into the possession or control of a solicitor, the solicitor must retain possession or control until a determination regarding refundable costs has been made. The solicitor must pay the assessed contribution from such moneys.
Costs payable by the legally assisted person
When a Court or Tribunal orders a legally assisted person to pay the costs of the other party, such costs are not normally paid by Legal Aid Queensland.
Either the legally assisted person or the other party may request Legal Aid Queensland to pay those costs. Legal Aid Queensland cannot pay such costs unless it is satisfied that the person making the request will suffer substantial hardship if the costs are not paid, and that it is just and equitable that the costs be paid.
Appeal Costs Fund
It is a condition of each grant of legal assistance that where matters fall within the terms of the Appeal Costs Fund Act(1973), solicitors must apply for reimbursement of the costs expended by Legal Aid Queensland from the Appeal Costs Board.
Ownership of Legal Aid Files
Preferred supplier files are owned by the preferred supplier and the client. In-house practice files are owned by the in-house practice of Legal Aid Queensland and the client.
Documents held on a preferred supplier or LAQ in-house practice file may belong to the solicitor, the client or a third party. Common law principles and relevant legislative provisions apply in determining ownership of or entitlement to such documents.
Access to these documents by clients (including former clients) is governed by the Australian Solicitor's Conduct Rules 2012 and the Information Privacy Act 2009.
Grants administration files are owned by Legal Aid Queensland. Access to documents on these files is considered under the Right to Information Act 2009 or the Information Privacy Act 2009.
Lien
A private solicitor who agrees to undertake a case which is funded by Legal Aid Queensland does so on the basis that both the solicitor and client acknowledge that the solicitor's common law right to exercise a lien on that file for which legal assistance was granted is restricted, with respect to transferring that file to another solicitor while the client remains legally assisted.
Waiver of privilege
A legally assisted person's solicitor shall disclose all relevant information to Legal Aid Queensland. The client is deemed to have waived any privilege or right that might preclude such disclosure.
Last updated 29 November 2017